Wasserman's Appellate Summaries
September 15, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes back attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
Ashdown v. Ameron International Corporation
Case No. A084561
California Court of Appeal, First District, Division Three
PERSONAL INJURY-ASBESTOS RELATED DISEASE-EXCLUSIVITY OF WORKER'S COMPENSATION REMEDY-EXCEPTIONS TO EXCLUSIVITY OF WORKER'S COMPENSATION-DUAL CAPACITY DOCTRINE-FRAUDULENT CONCEALMENT OF INJURY-ACCRUAL OF CAUSE OF ACTION FOR ASBESTOS RELATED DISEASE-APPLICABILITY OF POST EXPOSURE AMENDMENT TO STATUTE TO ASBESTOS RELATED DISEASE
Smith, died in 1994, shortly after he was diagnosed with a terminal asbestos-related disease. His surviving spouse and executor Ellen Ashdown, and children brought against his employer, Ameron International Corporation. Smith had been exposed to asbestos as a pipe inspector from 1962 -1964. Summary judgment was for Ameron, on the grounds of exclusivity of Workers' Compensation as a remedy.
HELD: California workers’ compensation law provides the exclusive remedy in this State for the recovery of compensation, from either the employer or any other employee of the employer acting within the scope of employment, for the injury or death of an employee arising out of and in the course of the employment. Under the common law dual capacity doctrine, when an employee is injured in the course of a relationship with his or her employer that is conceptually distinct from that of employer and employee, or while the employer is acting in a legal capacity toward the employee distinct from that of employer, the employee may bring a civil action and recover damages at law for breach of the employer’s duties arising from that distinct relationship or legal capacity, notwithstanding the general exclusivity of the workers’ compensation remedy. In 1982 a section was added to provide that where the employee’s injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee’s use by a third person, the employee could bring an action at law for damages. This 1982 amendment restricting the application of the dual capacity doctrine applies to Smith since his cause of action accrued after the amendment. The accrual of a cause of action for an injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment. The action also cannot be maintained under the common law fraudulent concealment exception to the exclusivity of the workers’ compensation remedy. An employer’s actual knowledge of the existence of an employee’s injury connected with the employment is a necessary prerequisite to establishing a claim against the employer. None of the essential elements of the fraudulent concealment exception can be found in this case. Affirmed.
United States v. Egge
Case No. 98-30322
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-ADJUSTMENT IN SENTENCE LEVER FOR FIVE OR MORE PARTICIPANTS-DETERMINATION OF NUMBER OF PARTICIPANTS
Egge was listed as a customer by distributor of controlled substances. An investigation of Egge produced a witness, Featherman, to distribution of methamphetamine by Egge and a search resulted in the discovery of controlled substances. Egge was convicted of conspiracy to distribute methamphetamine. The Pre-Sentence Report recommended a three-level upward adjustment based on a conversation with Featherman that Egge's activity involved three suppliers and ten customers. The district court adopted the three level enhancement in sentencing, finding that Egge was a manager of a criminal activity involving five or more participants.
HELD: In making factual determinations, a sentencing judge is generally not restricted to evidence that would be admissible at trial. A defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information. Due process requires that some minimal indicia of reliability accompany a hearsay statement. This requirement demands extrinsic corroborating evidence that supports the hearsay statement. There is sufficient evidence in the record for a reasonable trier of fact to conclude that Egge did manage Featherman. Customers who are solely end users of controlled substances are not participants for the purposes of U.S. Sentencing Guidelines. To qualify as a participant, a customer must do more than simply purchase small quantities of a drug for his personal use. The Court found that the record provided sufficient evidence of five participants (counting Egge himself) in Egge's criminal activity, exclusive of the customers. Affirmed.
McDade v. West/County of Ventura
Case No. 98-56500
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-WHEN STATE EMPLOYEE IS ACTING IN OFFICIAL CAPACITY-NECESSITY FOR CAUSAL CONNECTION BY GOVERNMENT ENTITY TO DEPRIVATION OF CIVIL RIGHTS
Ms. West, as an employee of the Ventura County's District Attorney's office, illegally used its Medical Eligibility Data System computer system to find McDade at a battered women's shelter in order to serve McDade papers relating to child custody issues with her husband. McDade sued, alleging violation of her right to privacy, conspired to violate her civil rights, failed to train and supervise and Penal Code violations. Summary judgment was for the County.
HELD: The purpose of S1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights. To be acting under color of state law requires that the defendant exercised power possessed by virtue of state law while acting in his official capacity. Although improper Ms. West's actions were clearly related to the performance of her official duties and were an abuse of her responsibilities. Ms. West failed to demonstrate a direct causal link to any municipal policy or custom that actually caused the deprivation of McDade's federally protected civil rights. Affirmed in part reversed in part.
Cunningham v. Williams/Gates
Case No. 98-55108
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-QUALIFIED IMMUNITY OF INDIVIDUALS AND GOVERNMENT FOR ACTIVITIES OF SPECIAL POLICE UNIT
The three consolidated lawsuits arise out of the actions of the Special Investigative Services of the LAPD, whose purpose was to interdict and apprehend armed, violent career criminals. Cunningham, Smith, and the parents of Daniel Soly, sued the city of Los Angeles and numerous City officials, alleging they either used excessive force, acquiesced in the use of excessive force, or engaged in an unconstitutional policy of indemnifying LAPD officers against punitive damage awards in excessive force cases. The district court granted summary judgment to the City's mayor, and denied all other defendants' motions for summary judgment based on qualified immunity.
HELD: If a group of officers agree that if and when some of them knowingly commit unlawful acts others will falsify records and testify falsely to cover up the truth of the relevant events, all of those involved are liable for the unlawful acts. The district court never conducted an individualized analysis to determine whether each moving defendant was entitled to qualified immunity based on his or her individual actions. Under the Fourth Amendment, police may use only such force as is objectively reasonable under the circumstances. Because the district court found material factual disputes, the Court held there was jurisdiction to review whether the shooting officers are entitled to qualified immunity. Allowing Cunningham and Soly to commit their crimes, despite having probable cause to arrest them, does not state a violation of a constitutional right. The non-shooting and non-present officers cannot be held liable for failing to intercede to prevent the shooting of the plaintiffs. The jamming technique used was a reasonable use of force for the purposes of the Fourth Amendment. There was no evidence supporting any officers involvement in fabricating evidence. City council members were entitled to qualified immunity because the law was not clearly established that a policy of indemnifying punitive damage awards violates constitutional rights. Affirmed in part and reversed in part.
United States v. Quintana-Torres
Case No. 99-50690
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-DEPORTED ALIEN FOUND IN THE UNITED STATES-EVIDENCE OF VOLUNTARY PRESENCE IN UNITED STATES-CIRCUMSTANTIAL PROOF
Quintana-Torres was a citizen of Mexico. In 1994, he was deported from the United States. In 1996, he was found in San Diego, California. Quintana-Torres was convicted of being a deported alien found in the United States.
HELD: Voluntariness of the return to the U.S. is an element of the crime charged and must be proved beyond a reasonable doubt by the prosecution. It is circumstantial proof that an alien had the intention to be in the U.S. when the alien is discovered at any location in the country other than the border. Affirmed.
Wasserman's Archived Appellate Summaries
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